It was O’Regan’s order to enter binding arbitration that stopped the collective bargaining process in its tracks
The aftershocks of the two-day strike by WestJet’s mechanics that grounded its fleet, and disrupted the travel plans of 170,000 customers over the busy Canada Day weekend, continue to rumble.
There were more cancelled flights last week, and frustrated customers say that the airline’s customer service operation remains unreachable.
Inevitably, angry travellers are pointing the finger of blame at WestJet. But the airline, in turn, is furious at what it calls a “rogue” American union representing the mechanics — the Airplane Mechanics Fraternal Association — and (unofficially) at the federal labour minister, Seamus O’Regan, whom they accuse of incompetence and dithering.
The AMFA’s 680 members employed by WestJet voted to strike in May and rejected the airline’s pay offer in mid-June. The two sides were unable to reach a deal in the run-up to the Canada Day weekend, and WestJet called on O’Regan to issue an order referring the dispute to the Canada Industrial Relations Board (CIRB) for binding arbitration.
That order appeared to avert the prospect of a strike, and WestJet, which had been in the process of an orderly wind down of its schedule, returned to regular operations.
Corks were popped in the minister’s office and media reported that the strike was off.
Yet, 24 hours later, 680 mechanics walked off the job, and WestJet was forced to park its 130 aircraft at 13 airports across Canada, causing travel chaos on the busiest travel weekend of the summer.
What happened? It brings to mind the P.G. Wodehouse story about a “confusion of ideas” between the late A.B. Spottsworth and a lion he was hunting in Kenya. The confusion was that Spottsworth thought the lion was dead and the lion thought that it wasn’t.
By issuing the binding arbitration order to the CIRB, O’Regan, and just about everyone else, thought that the strike would automatically be called off, as has been the precedent for the previous six decades of labour relations in this country. The norm is that once the parties are in arbitration, there is no more bargaining or strike action.
However, the AMFA does not belong to the cozy cabal of labour organizations in Canada, and objected to the referral by O’Regan, arguing it limited its workers’ right to strike, a right protected under the Canadian Charter of Rights and Freedoms by a 2015 Supreme Court decision.
Perhaps not surprisingly, given the minister’s referral did not direct the strike to end, the CIRB agreed with the union, granting it legal strike authority.
The minister and WestJet were completely blindsided by the development.
This is the nub of the airline’s complaint. Sources say WestJet called on the minister to clarify his position within an hour of the initial order to the CIRB being made, and to directly call for the union to rescind its strike order. (Requests for comment from O’Regan and his chief of staff, Paul Moen, were not returned at press time.)
The union may have continued to argue its case on constitutional grounds, but Seham’s letter makes clear that it was “the absence of a direct order” by O’Regan that emboldened the AMFA.
Ultimately though, he and the federal government took no further part in the proceedings and have still not clarified whether it will take action to stop unions from striking during binding arbitration.
WestJet suffered brutal losses over the long weekend and was forced to pay the tariff, caving to the union’s demands of a 30-per-cent increase in compensation over the next five years. The deal has been hailed as a resounding victory for workers’ rights.
It is hard not to feel sympathy for WestJet, given it was O’Regan’s order to enter binding arbitration that stopped the collective bargaining process in its tracks.
If he felt that his hands were tied by the Charter, the minister could have said so and WestJet would likely have reached an agreement before the strike deadline. The cost to its reputation and its compensation liabilities are likely to dwarf the incremental dollars required to get a deal.
Where does this leave us? Perrin Beatty, the president of the Canadian Chamber of Commerce, said on X that the federal government’s words and actions throughout the strike were “utterly incoherent.”
“The tens of thousands of Canadian travellers who had their Canada Day weekend ruined are entitled to some straight answers about how this happened. At the very minimum, the government needs to resolve whether unions can strike during arbitration. If they (government) fail to do so, they invite future disruptions that hold the public to ransom,” he wrote.
We have likely not heard the last of this story. Conservative MPs may decide to call O’Regan to account when Parliament resumes in the fall. WestJet is said to be considering its options, including asking O’Regan to retract his public statements that appear to blame the airline.
Longer term, the options are limited. The government could, of course, have recalled Parliament and passed back-to-work legislation. But the NDP would not have supported it, and the net result for the Liberals would likely have been a general election.
Tracey Epp, a partner and labour lawyer at Pitblado Law in Winnipeg, said there is nothing in the Canadian Labour Code that would have allowed the minister or the CIRB to end a legal strike. “The right to strike is protected by the Charter, whether we like it or not,” she said.
The government does have some leeway when it comes to public safety in deeming air travel an essential service. “But not being able to go on vacation is not a danger to the safety or health of the public,” said Epp.
She said that Manitoba has reached a more balanced position between the rights of the public and the right to strike in its Labour Relations Act, which allows the provincial labour board to order binding arbitration that immediately ends strikes or lockouts — but only after 90 days in the case of first agreements, or 60 days in subsequent negotiations.
“You can play with the timelines, but it strikes a better balance between the right to strike or lockout and the catastrophic effects,” she said.
None of the potential legislative fixes will provide much comfort to WestJet, which has taken a reputational hit from which it may never recover.
When the anti-scab legislation was at parliamentary committee, O’Regan suggested there was no need for replacement workers if companies and unions could engage in free and fair collective bargaining.
He cited the example of a WestJet pilots’ strike that was narrowly averted in spring 2023. When a deal was reached “they were opening up bottles of Champagne and were happy to be in each others’ company,” he said.
We are a long way from the time when WestJet’s staff considered themselves to be owners of an airline that prided itself on its positive workplace culture.
But it deserved better than to have its negotiating efforts hamstrung by a minister who dabbled and dithered, and then slunk off when the going got tough.
Twitter.com/IvisonJ